The pending nomination to replace Justice Sandra Day O’Connor presents the Democrats with an incredible dilemma. Do they go to the mat and potentially lose in trying to keep a more conservative justice from replacing O’Connor? Or do they put on a semi-respectable inquisition (as with John Roberts) and not further erode their standing with the public by appearing to be knee-jerk obstructionists?
They were essentially faced with the same dilemma in July when O’Connor resigned and Bush nominated Roberts as her replacement, but two things intervened: 1) Roberts didn’t fit the wild-eyed conservative troglodyte impression they intended to paint of any Bush nominee and 2), Chief Justice Rehnquist died, thus allowing Bush to re-nominate Roberts to fill the Chief’s position instead. This created a conservative-for-conservative scenario and took some of the credibility out of the “maintain the balance” rhetoric that the liberals planned to use.
The usual suspects in the Senate did their usual thing; issued the usual demands for documentation, extrapolated and blew out of proportion past comments by the nominee, made the usual “we are deeply concerned” statements. But when the day was done their arguments carried little weight.
That’s not to say that the radical liberal elements of the Democrat’s constituency didn’t demand more from their Senate puppets. They did. But in this case the puppets were a little smarter than their masters. They knew the steam had been taken out of the arguments they intended to make, and they knew that there was another and more important nomination battle yet to fight. Why waste your credibility on a losing campaign when you could be less obstructive now and potentially gain more credibility to use when being obstructive later?
It is an established point of military as well as political strategy to pick your battles – and this one was not winnable. The public supported Roberts’ nomination and, as a result of his being switched to the Rehnquist seat, defeating him became less important and a harder sell.
It is one thing not to put up the kind of fight that their more radical supporters wanted, but it is another thing entirely for almost half of the Democrat caucus to side with the enemy. Close to twenty have announced that they will vote to confirm Roberts. And now the circular firing squad is forming. Groups such as People for the American Way have already come out with statements condemning Democrats such as Pat Leahy for supporting Roberts.
After this betrayal, or at least a seeming lack of effort, the far left will demand all out war on the next nominee, hence the Democrats dilemma. Do they do what comes natural and oppose the next nominee to the point of mounting a filibuster? Or do they avoid playing into Republican hands and looking like knee-jerk obstructionists by doing the bidding of the left and not jeopardize their chances in the next election?
Article comments
1 - Victor Plenty
Bush could always nominate Hillary Clinton for the seat. Then the Democrats wouldn't filibuster, and the GOP wouldn't have to worry ever again about who to run against her in a race for the White House.
2 - RJ
VP:
Interesting...but I'd rather have her (possibly) in the WH for 4-8 years, than sitting on the USSC for 30 years..
3 - Victor Plenty
Yeah, I know, RJ. I just find mentioning a Clinton on the Supreme Court is the quickest way to get a Republican to admit that it really does matter who gets appointed to those seats.
It's funny to watch how quickly you guys shift gears, from advising the Democrats to "go along to get along" with whatever Bush wants, into "Hell No! We shall fight until the end! We shall never surrender!" as soon as I mention the idea of appointing a Clinton.
Funny, in a sad and hypocritical sort of way.
4 - Dave Nalle
If we're going to put a Clinton on the court I'd prefer Bill.
Dave
5 - Bob A. Booey
Of course the Democrats will fight.
The polls consistently show that the public knows or cares little about the courts and the "judicial obstructionism" charge won't cost the Democrats AT ALL in the '06 midterms. It's something conservative commentators like to rant about, but not something that resonates as even one of the top 10 electoral issues.
Bush will spend all the political capital he has left on a conservative nominee for O'Connor's seat. He doesn't have very much and doesn't have enough to do Social Security, so he'll spend it all on the Court nominee. It should make for an interesting fight. Bush likely couldn't get someone like Luttig approved now by the Senate, but that doesn't mean he won't try.
The Democrats had nothing to lose by fighting Roberts either. While the public said they liked his resume, almost 70% said they knew nothing about him and wanted to know more. There was no public outcry that will cause Dems to vote for his confirmation. It's that he said JUST enough to mollify some Democrats with his statement that he believes in a constitutional right to privacy (a very weak hope indeed for an assurance that he wouldn't overturn Roe) and that his resume is impressive enough that moderate Democrats will give Bush the benefit of the doubt Presidents usually get. All Democrats who want to be President in 2008 are voting "No" on Roberts because there's nothing to lose with the public and more to gain politically with the base and potentially general election voters if Roberts participates in a uniquely unpopular ruling before November 2008.
Democrats should be fighting Roberts harder because Bush will make the argument that the opposition to his second nominee is arbitrary and unfair when that nominee's conservative track record and resume is shown to be similar to that of Roberts. Public backlash was never a serious risk to a "No" vote and there's no political impact to voting "No" on Roberts. Roberts will pass with 70+ votes, but if he is confirmed with 80+ votes, it means the Democrats failed to send a message to Bush that he better pick someone moderate with his second nominee. If Bush thinks they didn't fight back on Roberts, he'll go with his instincts and go even more conservative for the second nominee.
Bush will go conservative all the way and make this his perhaps his last big domestic agenda fight before the 2006 mid-terms. And it'll probably be a pretty interesting, tough fight as well. There'll be no softballs at that second confirmation hearing and some very angry Senators.
If the Democrats lay down and roll over on the second nominee, they're going to be weaker for it and it'll be a political victory for Bush. I don't think they will, however. There are too many ambitious Senators with their eyes on 2008 and too much animosity toward Bush from both Democrats and moderate Republicans in the Senate who might defect on a particularly controversial nominee, such as Luttig or Alberto Gonzales.
That is all.
6 - Dennis Klein
YOU CAN'T HAVE IT BOTH WAYS - -
BEING AN AMERICAN AND BELIEVING SOME AMERICANS ARE NOT OK
Jeremiah was the living prophet when the first Temple was destroyed. He was known in many lands by many peoples. With the loss of the Temple, Jeremiah had a new message - - replace sacrificial ritual with understanding the Book. One of his proclamations is the Night and Day Covenant. "By night and by day..." [I will never ignore you. No matter how low you go, by night and by day, everyone, everywhere, is OK. None will ever be abandoned. Even the lowest can aspire through redemptive thoughts and deeds].
Conundrum - - Living by the rules can enable you to succeed at what you do, eventually gaining the power to do whatever you want.
When lead by vanity, you strive to feel good with no thought to how much you inconvenience others. That's decadence.
When lead by civility, you strive to do the greatest good for the greatest many, knowing you can only be your strongest when everyone is strong.
If according to the Day and Night Covenant, everything is OK, then vanity is just as OK as civility. How then can civility win over vanity for maximum convenience to everyone?
When enough people seek redemption even as they slip into decadence in order to curb their vanity, good trumps bad most of the time. The resulting republic rewards all, particularly the strong who prosper even more by sharing than taking, while even the weakest prosper greatly.
In a republic, everybody is in one room. Everybody in this one room is OK. Everything is OK except treating some like they are not OK.
It's just fine to think it, that you are better than others. Think it night and day! That's vanity.
Sharing those thoughts with no one else, ever, that's civility.
That uncomfortable feeling you get when you overcome your natural tendencies, that's redemption.
Occasional gaffs is OK. That's hypocrisy. That's just fine.
Contradiction is not OK.
For example, slavery did not work.
Though Americans struggle with hypocrisy, the Civil War proved free can not do contradiction.
So, you see Susie, America is not easy - - Never stop looking right at the deal, turning it on all sides, living in the land of the brave (there is no free without brave).
The payoff is the republic and its four side kicks - - comfort, security, justice and equity for all.
--------------------------------------------------------------------------------
MEGABUCKS are being spent on fostering hate virulent enough to end our republic. The latest evidence of its progress is the lead-up to the humiliating loss of New Orleans. Opposition media is good at using shock to alert everyone to the danger. However, just fighting hate with hate is proving to not be a winning hand. Instead, consider stitchin this POSITIVE message and aim it at the millions of Americans susceptible enough to biblical references to become the Neocon's power base. Use this biblical reference as a backfire to deprive this firestorm the additional combustible material needed to burn or national republic to the ground?
csumpress(c)2005
7 - Cunning linguist
It's pretty easy to predict what will happen with the second nomination. Bush is beholden to the right wing that got him elected whose litmus test is to have a conservative pro life judge and the Democrats are beholden to their left wing backers whose litmus test is that the nominee be a liberal who beleieves abortions should be legal in all cases.
Bush will nominate a conservative as is his right. The Dems will object and fight the nomineee as is their right. Hopefully however the Republicans will show some balls for a chnage and not cave into the left who is so gung ho to murder innocent babies and get the pro life consservative nominee passed.
The left had no problem with Ginsberg, who is far far left on the court but now they are screaming for moderation. Fuckin hypocrites.
If the Hero of Chappaquiddack tries to Bork the next nominee I hope the GOP cuts his balls off. Vebrally of course. Seriously when's this fat bastard gonna have a heart attack and croak so we don't have to deal with his bullshit anymore?
8 - Silas Kain
Is a conservative court such a bad thing? Maybe that's what we need. As conservative as the SCOTUS could become, would these justices not at least consider the ramifications of their decisions? If the nightmare scenarions painted by liberals were to come to pass I have a sneaking suspicion that the American public might just have the wherewithal to revolt. The sub-standard quality of our elected officials hasn't caused us to take notice. Perhaps a repressive, conservative SCOTUS will.
9 - Matthew T. Sussman
Conservative judges != conservative politicans
Likewise
Activist judges != liberal politicans
10 - gonzo marx
please show me a true "conservative" politician in the vein of Goldwater/Buckley?
i can't seem to find one that is willing to stand up for fiscal responsibility , ending corporate welfare and smaller government along with the Right of the Individual to Privacy...
where are they?
such bullshit from both sides with Orwellian doublespeak...
but i digress...
as for the next nominee...a lot will depend on who it is...if it is another seeming moderate, it would be difficult to oppose, but if the WH tries to stuff a crony neocon/theofascist into there...well then...all hell breaks loose
with this past week bringing out headlines about Brown, Frist and DeLay it just may be that the stonewall Rovian intimidation factor is wearing off the press, and they will actually do their fucking jobs and dig a bit to get the bigger picture in some of these matters
time wounds all heels
Excelsior!
11 - Bob A. Booey
Silas, here's the problem. Court justices are there for life and have no process of popular review or electoral control.
A conservative court that would overturn Roe or civil rights protections or environmental statutes or Title IX would cause irreparable damage to our society that couldn't be reversed for a decade or two minimum, assuming the composition of the Court changed enough and that issues like abortion would come up again and be granted cert for review.
People know very little and care very little about the Supreme Court. If Roe were overturned, it would be massively unpopular and would cost the GOP HUGE for elected offices for quite a while, but there's nothing the public can do to "revolt" against the Court, nor should there be. The fight is before they're confirmed, not after they make rulings we hate.
That's our system of government.
That is all.
12 - Matthew T. Sussman
"If" Roe was overturned. This keeps getting brought up and I haven't seen any proof that it will.
Overturning that ruling would make the issue a state one, and most/all states would permit it. While I admit to not reading the majority opinion of the case, I don't know from where they drew their conclusions.
Turning over precdent is not unheard of. Prohibition and seditious libel come to mind. Agreed, those were laws that disallowed something, only to have it repealed. I don't know of anything on a grand scale that allowed something then rolled it back.
And yeah, the state laws might take a little while to materialize, making abortion "open for debate" if not "illegal" for the time being.
Democracy is slow, coat hangers are fast.
13 - Bob A. Booey
We don't know for sure of course when it would be overturned or that it would, but it seems fairly clear to me that Roberts will vote as Rehnquist did to reject the logic supporting Roe based on what we know of his legal philosophy. And Bush will name someone much, much more conservative than O'Connor was for the second nominee. I don't think abortion rights will come up for review for at least a couple of years, but when they do, I expect a real tragedy for women throughout much of the Midwest, South and rural West where legislators and judges will immediately capitalize on the new precedent. Parental notification will come up within a year, most likely.
State courts almost always follow the precedent of the Supreme Court on big issues like this one and any state that funded abortions would face those laws challenged under this new ruling.
The coat hangers joke was in bad taste, Henny. What would Chelsea say? Have some empathy, bro :) That was creepy.
That is all.
14 - Silas Kain
I think gonzo's made a very important point. The conservative of today is not a disciple of Goldwater or Buckley. The conservative of today comes across as cold, calculating and devoid of any consideration of those in the binds of poverty. Even the 'Reagan Republicans' who prance around this country are liars. They're nothing like Ronald Reagan.
Silas, here's the problem. Court justices are there for life and have no process of popular review or electoral control.
That's true, BABs, but is it better to subject them to review? I think not. Judges must be in a position where they don't have to play politics. I think the process of electing judges is very dangerous. I think a serious review of justice statistics needs to be done in those states and counties where this happens. Insofar as Roe v. Wade is concerned, I don't see evidence that this will be overturned. If it is, then it will be up to state legislatures to determine the abortion question once and for all. That's not a bad thing. Pontificating politicians are going to have to come down from their bully pulpits and face their voting congregations.
Democracy is slow, coat hangers are fast.
Maybe it was in poor taste or creepy but in its simplicity the above sentence is the truth. We've got to face ourselves and realize that the overturning of Roe v. Wade does send us back to a time where abortions were performed in back rooms and alleys without serious regard for the well-being of the woman. Of course there will be states where women will be able to get abortions. Unfortunately that would make the option of abortion available only to those women who are in a financial position to be able to make that decision. There's where I see the moral issue evolving. Women, regardless of class or economic status, should have equal access to the health care that they choose, period.
15 - Bob A. Booey
Which is why we can't have a rightward shift on an already conservative court.
Think abortion's an immoral abomination? Unlicensed, unsanitary back-alley coat hanger abortions are a far, far worse thing.
That is all.
16 - Matthew T. Sussman
Do state courts mimic that of their Supreme overlord? Examples?
Roberts & Co. would have to think long and hard about the precent set forth by Roe v. Wade before they review a potential landmark case like I Normally Don't Put Out On The First Date v. Rich White Doctor Who Just Found Jesus. If they simply felt it was a state's right issue, I would bet they would explicitly state in the opinion that it's in the best interest for states to construct their own laws on abortion to fit the needs and climate of individual states.
My apologies for little to no warning on the aborted fetus joke at the time of impact. But you did have a general warning:
17 - Bob A. Booey
Every major social decision since Brown v. Board is an example.
Lawrence v. Texas was a recent example which overturned sodomy laws and the precedent of Bowers v. Hardwick.
Roe CANNOT be a states' rights issue now. That's what happens when a constitutional right has been asserted for 30 some years. It is a federal matter involving privacy now and a Court ruling striking down abortion would likely make it very difficult to get a safe, legal abortion by a physician in this country. Even in practical terms, it would mean that physicians would receive very little professional, political or even insurance cover for performing abortions in the localities and states where the law might still allow it and where judicial rulings were still forthcoming.
Sussman, we were having such a good time talking comedy and sports too!
Chelsea wasn't lying about your politics :)
That is all.
18 - Matthew T. Sussman
Naw, the fun was over when you said Wedge isn't AL Manager of the Year.
Which reminds me, I never did Parts 2-4 of my Suss Choice Awards.
I'll be in the NFL Elmination thread bumping it up to the hot list so the participants know it exists.
19 - Bob A. Booey
Check it again, Suss :)
I admitted you were right and that Wedge will be Manager of the Year. It looks like the Sox have the division, but I have to believe the Indians will win the wild card. They've been on an amazing run and have more balance than the Yanks and Red Sox.
I pray the Yanks will slip up and be out of the playoffs, but they have a lead on Boston now.
That is all.
20 - Matthew T. Sussman
Some things you just can't take back.
21 - Bob A. Booey
But I said I was sorry, baby :) Can't we just go back and have a fresh start?
I'll take ya out, buy ya a nice dinner, some dancing, anything you want.
Whaddya say?
And for the record, I said it was up in the air between Ozzie and Wedge depending on who won out the division, so don't twist my words against me, darling.
See, this is why you need to finish writing up the end of the pennant races and your post-season award/playoff picks.
That is all.
22 - Dave Nalle
>>Bush will spend all the political capital he has left on a conservative nominee for O'Connor's seat. He doesn't have very much and doesn't have enough to do Social Security, so he'll spend it all on the Court nominee. It should make for an interesting fight. Bush likely couldn't get someone like Luttig approved now by the Senate, but that doesn't mean he won't try.<<
If Bush is going to actually spend political capital on the nominee it doesn't make any sense that he'd nominate a conservative. He can get a conservative passed on Republican votes once the Democrats burn themselves out fillibustering, and he gets the bonus of making the Demos look bad. IMO the situation is more interesting, because he likely really does want to preserve balance on the court, so he really needs to find another O'Connor, and it's not going to be easy at all because really doesn't want to get into the horrible situation his father did with nominees who turned out not to be as advertised.
Dave
23 - Bob A. Booey
Moderate Republicans won't vote for someone who's too extremely conservative and 60 votes to break a filibuster requires Bush to spend time and effort to expend his political capital cajoling Democrats to confirm his second nominee. It depends on the nominee, of course, how much political capital will be expended.
With the possible exception of immigration reform, Bush has nothing serious on his domestic agenda before the '06 midterms and this is the next big fight that he'll spend what little capital he has left on.
What on Earth makes you think Bush wants balance on the court and another O'Connor? He's learned the Souter lesson and will go conservative.
I hope you're right but I seriously doubt Bush is going for a moderate who'll be another unpredictable swing vote.
That is all.
24 - Dave Nalle
The Souter lesson is the thing to fear. I'm positive Bush would like another O'Connor, but it may be that fear may force him to go pure Conservative just to avoid getting hosed by another Souter, and I certainly understand the difficulty he's faced with.
Dave
25 - Silas Kain
And the closet in the SCOTUS fills with more skeletons...